Majority
Headnote
Mandamus—State Board of Health—Inspection of Beports—Bightful Transmission to Governor.—Mandamus will not lie to compel the secretary- of the state board of health to grant an inspection of reports of bacteriologists which, prior to the commencement of the proceeding, had been rightfully transmitted by the board to the governor, so as to put it out of the power of the secretary of the board to comply with a writ of mandate.This was an application for a writ of mandamus, directed to the appellant, as secretary of the state board of health of the state of California, commanding him to permit the respondents to inspect and take copies of the written reports of Doctors Mauser and Ryfkogel of a bacteriological examination of an alleged ease of bubonic plague made for the state board of health.
The petition for. the writ was filed with the court below, and an alternative writ issued thereupon, on the third day of August, 1900. In the petition,—to wit, the affidavit of Herbert A. French,—it is stated that he is a reporter and employee of respondents, who are proprietors and publishers of the Evening Bee, a newspaper of general circulation, published in the city of Sacramento, and that on the second day of August he went to the office of the state board of health located in the state capítol building at Sacramento, and made application to appellant Matthews, being then a member and secretary of the state board of health, to inspect said reports,
The court overruled defendant’s demurrer, and thereupon plaintiffs (respondents here) made a motion for judgment upon the pleadings, which motion, after argument, the court granted, and ordered a peremptory writ of mandate to issue as prayed.
From the answer filed, it appears that the defendant did not have the care, custody, or control of the reports in question when this proceeding was commenced and the alternative writ issued; that they had prior to that date been transmitted to the governor, as a special report of the state board of health. These affirmative matters appearing in the answer were not controverted, either by pleading or proof. In a proceeding for mandamus, “on the trial the applicant is not precluded by the answer from any valid objection to its sufficiency, and may countervail it by proof, either in direct denial or by way of avoidance.” (Code Civ. Proc., sec. 1091.) No' valid objection to the sufficiency of the affirmative matter in the answer was presented, nor was it countervailed by proof, but judgment was had upon the motion of the plaintiffs upon the pleadings. They are not mere questions of law or immaterial averments, as claimed by respondents, but present a very material issue. The office of mandamus is to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station. (Code Civ. Proc., sec. 1085.) At the time of the application for the writ, it was beyond the power of the defendant to comply with the order of the court in the premises. He could not at that time permit the petitioners to inspect or take copies of said reports, as they were not then in his custody or under his control, but were at the time in the possession and under the control of the governor of the state. The reports had been made to the state board of health, and by its direction transmitted to the governor. The defendant is only one member of the board, and, as its secretary, it was his duty to comply with all the lawful directions that it might make in the conduct of its business. Whether he opposed their transmission or consented thereto, is immaterial. It cannot be said that he committed any wrong in complying with the directions of the board, nor can it be said that it was unlawful, under the circumstances set forth in his
This point is decisive of the case, and renders it unnecessary to consider any of the other points presented and discussed by counsel on the appeal.
The judgment is reversed.
Harrison, J., and Garoutte, J., concurred.